Feds in Portland Now Unrestrained in Removing Journalists at Protests

In hearings in the case, Simon said the question of whether journalists can be allowed to remain after police or federal agents have issued orders to disperse was a question likely to end up before the U.S. Supreme Court.

He said the idea raised the question of whether journalists are allowed to continue to exercise their First Amendment right to observe and report government actions after police have ordered the dispersal of members of the general public who are themselves in the act of exercising their First Amendment right to protest.

In his ruling, however, Simon determined that the issue was not properly at hand.

He found that federal agents in Portland lack authority to declare a riot and clear the city’s streets, and that they aren’t even asserting that right in their claims. And he noted local police have already stipulated to an injunction saying they will not arrest journalists or legal observers for failing to obey orders to disperse.

“Someday, a court may need to decide whether the First Amendment protects journalists and authorized legal observers, as distinct from the public generally, from having to comply with an otherwise lawful order to disperse from city streets when journalists and legal observers seek to observe, document, and report the conduct of law enforcement personnel,” Simon wrote in a footnote. “But today is not that day.”

That day appeared sooner than Simon seemed to have expected, in a three-page Ninth Circuit order where the majority was comprised of Judges Eric Miller and Daniel Bress – both Trump appointees.

“Based on our preliminary review, appellants have made a strong showing of likely success on the merits that the district court’s injunction exempting ‘Journalists’ and ‘Legal Observers’ from generally applicable dispersal orders is without adequate legal basis,” Judges Miller and Bress wrote.

Government attorneys have claimed that protesters are wearing fake press badges in order to gain cover to commit crimes, and that Simon’s restraining order and injunction put them in the position of risking contempt of court by apprehending such people. But Judge Simon pointed out in his ruling that there is no bar against arresting anyone at a protest — including journalists and legal observers — for suspected illegal activity.

The appeals court appeared to side with the government on that point.

“Given the order’s breadth and lack of clarity, particularly in its non-exclusive indicia of who qualifies as ‘Journalists’ and ‘Legal Observers,’ appellants have also demonstrated that, in the absence of a stay, the order will cause irreparable harm to law enforcement efforts and personnel,” the judges wrote.

Judge Simon had initially floated the idea of having the American Civil Liberties Union issue its blue vest to journalists in order to make them more clearly identifiable — an option the ACLU and attorneys for the journalists rejected as unconstitutional. 

Simon withdrew the idea, but even that might not have been enough for the ruling to survive appeal, since the Ninth Circuit included in its criticism of Simon’s ruling the “nonexclusive indicia” Simon required of legal observers, who must wear either blue ACLU vests or bright green hats issued by the National Lawyers Guild.

The appeals court left in place Judge Simon’s order for the parties to discuss ways to better identify federal agents, who do not wear unique identifying information. The government has said it has been unable to determine which agents are responsible for the alleged assaults documented in the declarations. But the appeals court said Simon can’t rule on that issue until the appeals court resolves the government’s current motion for a stay.

Attorneys for the journalists and legal observers will now file a response to the Ninth Circuit’s stay of Simon’s order. The government will likely respond to that filing, and then the appeals court will enter a final order.

For now, federal agents will have the unfettered ability to disperse journalists and legal observers at protests against racism and police brutality that have stretched into their third month.

Matthew Borden, attorney for ACLU of Oregon and partner at Braunhagey & Borden, said in a statement on Thursday that he disagrees with the court’s order and looks forward to filing a brief on the issues.

“The freedom of the press protects a democracy from devolving into tyranny,” Borden said. “Under the First Amendment, press and legal observers must be allowed to document what's happening at protests without being assaulted, shot, detained, or arrested. The government cannot be held to account if there is no one left to document its actions."

During an Aug 18. hearing, Borden underscored the danger at issue.

“If TV cameras hadn’t been there in Selma, nobody would know that people were beaten.”

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